PRATIMA GOCHHI Vs. HAREKRUSHNA DAS AND ANOTHER

JUDGEMENT

(1.) This petition challenges the order dated 10.4.2015 passed by the learned District Judge, Khurda at Bhubaneswar in F.A.O. No.150 of 2013. By the said order, the learned District Judge dismissed the appeal and confirmed the order dated 28.10.2013 passed by the learned Civil Judge (Jr.Division), Bhubaneswar in I.A.564 of 2013, whereby and whereunder, the parties have been directed to maintain status quo. Simultaneously, the learned appellate court directed the learned trial court to depute an Amin Commissioner and submit the report.

(2.) The petitioner as plaintiff instituted C.S.No.502 of 2013 in the court of the learned Civil Judge (Junior Division), Bhubaneswar for permanent injunction impleading the opposite parties as defendants. During pendency of the suit, she filed an application under Order 39 Rule 1 and 2 to restrain the opposite parties not to make any permanent construction. By order dated 28.10.2013, the learned trial court directed the parties to maintain status quo. Assailing the same, defendantopposite party no.1 filed FAO No.150 of 2013 before the learned District Judge, Khurda at Bhubaneswar. By judgment dated 10.4.2015, the learned appellate court dismissed the appeal but then directed the learned trial court to depute an Amin Commissioner for measurement of the land and to submit the report.

(3.) Mr.B.N.Tripathy, learned Advocate for the petitioner submits that the learned appellate court has committed an illegality in directing the learned trial court to appoint Amin Commissioner when no application was filed by the parties to the suit. He further submits that the Court hearing an application under Order 39 Rule 1 and 2 C.P.C. can not appoint Amin Commission for measurement of the land under Order 26 Rule 9 C.P.C.. He further submits that the defendants have not filed the written statement. The learned appellate court has not assigned any reasons for appointing the Commission and as such the order is bad in law.